Griggs v. City of Macon , 154 Ga. 519 ( 1922 )

Hines, J.

(After stating the foregoing facts.)

The contention of counsel for the city, that the plaintiff had an ample remedy by certiorari to review the judgment of the recorder committing him to the city court of Macon to answer the offense of "running a disorderly house,” and adjudging him guilty of “ running a lewd house,” and to reverse these judgments, if erroneous, and that for this reason injunction will not lie, is not well rooted in the law. The judgment of the recorder, that ,the plaintiff be committed, or give bond to appear to answer in the city court the offense of keeping a disorderly house, can not be corrected by the superior court by certiorari. Hyden v. State, 40 Ga. 476; Strickland v. Hamilton, 148 Ga. 820 (98 S. E. 471).

If the-judgment of the recorder, which is set out in full in the statement of facts, can be construed and held to be one adjudging the plaintiff guilty of maintaining and keeping a lewd house, then such judgment is void, first, because the recorder was without jurisdiction to find the defendant guilty of an offense which is punishable by a State statute (Lanford v. Alfriend, 147 Ga. 799 (95 S. E. 688); Snipe v. Dixon, 147 Ga. 285 (93 S. E. 399)); second, because the plaintiff was brought into the recorder’s court to answer the offense of running a disorderly house, and on such a charge could not be found guilty of running a lewd house, these offenses being separate and distinct offenses (Penal Code, §§ 382, 383); and third, because, as w;e shall undertake to show, the plaintiff was deprived of due process of law by the recorder in adjudging him guilty of this offense without notice and an opportunity to be heard. If this judgment of the recorder, in so far as it adjudged the plaintiff guilty of keeping a lewd house, is void, then certiorari is not an available remedy to review and correct that judgment. Certiorari lies, not to correct that which is void, but only that which is irregular or erroneous. Levadas v. Beach, 117 Ga. 178 (43 S. E. 418); Bass v. Milledgeville, 122 Ga. 177 (50 S. E. 59); Wright v. Davis, 120 Ga. 670 (48 S. E. 170); McDonald v. Farmers Supply Co., 143 Ga. 552 (85 S. E. 861); Sawyer v. Blakely, 2 Ga. App. 159 (58 S. E. 399); Simpkins v. Hester, 3 Ga. App. 160 (59 S. E. 322); Robertson v. Russell, 13 Ga. App. 27 (78 S. E. 682); Moore v. Thomasville, 17 Ga. App. 285 (86 S. E. 641); Mills v. Anderson, 20 Ga. App. 806 (93 S. E. 535). This being so, the plaintiff’s remedy was not certiorari.

For another reason certiorari would not afford the plaintiff a remedy. He is not seeking to review and have the judgment of the recorder set aside; but he is seeking to enjoin the enforegment of the resolution of the mayor and city council of Macon, directing the mayor of that city, upon the failure of the plaintiff and his guests to vacate his hotel after having been given five days notice so to do, to require the chief of police and all police officers to forcibly eject all occupants of the premises. This was legislation, and not action judicial. When a municipal council passes an ordinance or resolution, it acts in its legislative capacity; and certiorari will not lie. It is only when a municipal corporation acts in a judicial or quasi-judicial capacity, that the writ of certiorari will lie to review its action. Gill v. Brunswick, 118 Ga. 85 (44 S. E. 830); Carr v. Augusta, 124 Ga. 116 (52 S. E. 300); City of Atlanta v. Blackman Health Resort, 153 Ga. 499 (113 S. E. 545). Eor the above reasons the remedy by certiorari was not available to the plaintiff.

It is insisted by the plaintiff that that portion of section 86 of the charter of Macon, and the ordinances thereof, enacted in pursuance of said section, and embraced in sections 1092 and 1095 of the City Code, have been repealed by the act of Aug. 21, 1917 (Ga. Laws, 1917, p. 177), which declares houses of lewdness, assignation, and prostitution to be nuisances, and which provides a method of their abatement by injunction. This act does not expressly repeal said section and said ordinances. Its repealing clause only repeals conflicting laws. Repeals by implication are not favored. Erwin v. Moore, 15 Ga. 361; Girardey v. Dougherty, 18 Ga. 259, 262. An implied repeal arises from the enactment, the terms and necessary operation of which can not be harmonized with the terms and necessary effect of the earlier act. “ There must be a positive repugnancy between the provisions of the new law and those of the old. Wood v. U. S., 16 Pet. 842, 362 (10 L. ed. 987); Branch Bank v. Kirkpatrick, 5 Ga. 34, 37. The necessary implication of repeal must be so strong that it is equivalent to an express repeal. City of Atlanta v. Gate City Gas Lt. Co., 71 Ga. 106, 122. Applying these familiar principles, we do not think the act of 1917 repealed by implication this section of the charter of Macon, and these ordinances passed in pursuance thereof. The act of 1917 creates a cumulative remedy.

This brings us to consider the important constitutional questions raised in this case; one of which is whether that portion of section 86 of the charter of Macon and the ordinances of the city, passed in pursuance thereof, are unconstitutional and void because in conflict with the due-process clauses; and the other of which is whether they were being unconstitutionally administered against the plaintiff by the proceeding instituted in the recorder’s court, and by the resolution passed by the mayor and city council of Macon. Neither this section of the charter of Macon nor any of these ordinances provides for any notice and any opportunity to be heard. In the proceeding in the recorder’s court, no notice was given the plaintiff that the recorder would pass upon and determine the question whether his hotel was a public nuisance; but he was brought into that court solely for the determination of the question whether he be committed to answer the offense of keeping and maintaining a disorderly house. The recorder committed him to answer this offense, which he had the right to do; but the recorder went a step further, and adjudged him guilty of running a lewd house. This conviction of the latter offense was made in order to be certified to the mayor and council as the basis for the expulsion of the plaintiff and all its inmates from the former’s hotel. We are of the opinion, that this action of the recorder and the resolution of the mayor and council would, if the latter were enforced, deprive plaintiff of his property in this hotel without due process of law, in the absence of notice and an opportunity to be first heard upon the question whether his hotel was in fact being run as a lewd house.

We do not mean to hold that lewd houses can not be summarily-suppressed, when it is clear that they are such. Nuisances by the common law, by statute, and such as are nuisances per se can be abated without notice and a hearing. Rowland v. Morris, 152 Ga. 842 (111 S. E. 389). So the legislature can provide that nets set in the waters of the State, in violation of its laws for the protection of fish, may be summarily destroyed by any one. Lawton v. Steele, 152 U. S. 133 (14 Sup. Ct. 499, 38 L. ed. 385). So goods laden with infectious disease may be seized under health laws, and committed to the flames. Gilman v. Philadelphia, 70 U. S. 713 (18 L. ed. 96). So bedclothing, infected with disease, may be destroyed. Mayor of Savannah v. Mulligan, 95 Ga. 323 (22 S. E. 621, 29 L. R. A. 303, 51 Am. St. R. 86). We could add to this list many other nuisances which can be summarily abated without notice and a hearing; but this is unnecessary. Those mentioned are sufficient to make clear our meaning. But in the case at bar, the defendant was, obsténsibly conducting a hotel business. Such a business is a lawful one. It is true that a hotel may be so operated as to become a nuisance. Under the cloak of conducting a hotel, the owner may in fact be keeping a lewd house; but as the obstensible thing which he is doing is legitimate and above reproach, the fact that it is a nuisance must first be determined in a proceeding in which he had notice and opportunity to be heard. A resolution of the mayor and council of the city can not make his hotel a lewd house, if it is not in fact such. This fact shall first be determined in an orderly, judicial proceeding. The Supreme Court of the United States has well said: “ The mere declaration by the city council of Milwaukee that a certain structure was an encroachment or obstruction did not make it so; nor could such declaration make it a nuisance, unless it in fact had that character. It is a doctrine not to be tolerated in this country, that a municipal corporation, without any general laws either of the city or of the State, within which a given structure can be shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business, and all the property of the city, at the uncontrolled will of the temporary local authorities. Yet this seems to have been the view taken by counsel who defended this case in the circuit court; for that single ordinance of tbe city, declaring tbe wharf of Yates a nuisance, and ordering its abatement, is the only evidence in tbe record that it is a nuisance or an obstruction to navigation, or in any manner injurious to the public.” Yates v. Milwaukee, 77 U. S. 497, 505 (19 L. ed. 984).

So we are of the opinion that this resolution of the mayor and council of the City of Macon, and its enforcement, would deprive the plaintiff of his property without due process of law; and the administration of this section of the city charter and these ordinances, in the manner in which the plaintiff was proceeded against, violated the due-process clauses of the Federal and State constitutions. W. & A. R. Co. v. Atlanta, 113 Ga. 537 (38 S. E. 996, 54 L. R. A. 294); Peginis v. Atlanta, 132 Ga. 302 (63 S. E. 857, 35 L. R. A. (N. S.) 716); Yates v. Milwaukee, supra. Our law makes ample provision for the summary abatement of any nuisance arising from the manner in which this hotel may be operated. In our opinion such a nuisance can be abated in the recorder’s court, under the Civil Code, § 5331; and this holding is not in conflict with decisions of this court which hold, or seem to hold) that this section is not applicable to nuisances per se. This section furnishes a pat remedy for determining whether a nuisance exists from the conduct of an ostensibly lawful business in an unlawful manner. Such a nuisance can also be speedily abated under the act of 1917. Ga. Laws 1917, p. 177.

So we are of the opinion that the court below erred in not granting the plaintiff an injunction.

Judgment reversed.

All the Justices concur.